Kenneth Fletcher
WC Monitor
1/16/2015
The Department of Energy is pushing back against a total of $54.3 million in fines New Mexico has levied for violations at the Los Alamos National Laboratory and the Waste Isolation Pilot Plant, denying many of the alleged violations and calling the penalties “grossly disproportionate” in official responses filed late last week. The New Mexico Environment Department assessed the fines early last month for violations related to the Feb. 14 radiation release at WIPP. DOE has asked for a hearing on the issue, claiming in its Jan. 9 response that NMED’s “imposition of penalties is arbitrary, capricious and without substantial basis in law or in fact,” and that the state “improperly imposed penalties for violations of law which did not occur.”
NMED levied a $17.7 million fine for 13 violations at WIPP and a $36.6 million fine for 24 violations at Los Alamos National Laboratory, all related to the radiation release at WIPP that is believed to have originated from waste processed at LANL. The state has also emphasized that the money could not come out of cleanup funding. But DOE is taking issue with the penalties, claiming in last week’s response that they are “grossly disproportionate to other fines assessed against other permittees.”
‘Improper, Multiplicious Allegations’
The penalties are “based upon improper, multiplicious allegations of violations on the Hazardous Waste Management regulations,” DOE’s response states. It asks for the penalties to be lifted for the numerous violations denied by DOE and that the penalties be reduced or mitigated where DOE has admitted to the violations. At WIPP, DOE claims NMED can’t collect the penalties because DOE “complied with all applicable permit terms, rules, regulations, and laws.”
DOE also claims that the penalties assessed and alleged violations “unconstitutionally limits operations of the Department in violation of the Supremacy Clause of the United States Constitution,” the response states. Additionally, it believes NMED does not have jurisdiction for regulating some of the radiological components of the mixed transuranic waste at WIPP. According to the Atomic Energy Act, “source, special nuclear or by-product material” are not solid wastes and are therefore not subject to the Resource Conservation and Recovery Act, DOE states.
NMED ‘Very Confident’ It Will Prevail
But NMED is standing by its compliance orders. “NMED feels its compliance orders represent an accurate and dispassionate application of its penalty policy and procedures and we are very confident that we will prevail in any legal challenge to the compliance orders,” according to an NMED statement. “The pending NMED investigations into the cause and procedural violations that led to the February 14, 2014 radiological release at WIPP remain open and ongoing.”
Soon after the fines were announced DOE contacted the state about settlement options. “While NMED is always willing to consider settlement options in an effort to avoid excessive taxpayer expenses involved in litigation, our top priority is correcting the problems that ultimately caused the release at WIPP and ensuring the long term success of New Mexico’s federal facilities,” according to NMED. “The parties will continue to engage in settlement discussions as the legal process moves forward. However, we will not agree to back down on any of the problematic issues we identified in the compliance orders.”
DOE Looking for ‘Positive Path Forward’
DOE said in a statement that it has initiated discussions on the issues identified in the compliance orders. “We look forward to addressing the underlying causes that led to the compliance orders and to developing a positive path forward for the re-opening of WIPP and the resumption of transuranic waste operations at LANL,” according to the DOE statement. “We have also filed formal legal responses as required to respond to the State’s orders. We share with NMED the goal of quickly addressing outstanding issues and fully resuming operations at both LANL and WIPP.”
